2012 New York Consolidated Laws
LAB - Labor
Article 7 - (200 - 219-C) GENERAL PROVISIONS
218 - Violations of certain provisions; civil penalties.

 
    §  218.  Violations  of certain provisions; civil penalties. 1. If the
  commissioner determines that an employer has  violated  a  provision  of
  article  six  (payment  of  wages), article nineteen (minimum wage act),
  article  nineteen-A  (minimum  wage  standards  and   protective   labor
  practices  for  farm workers), section two hundred twelve-a, section two
  hundred twelve-b, section one hundred sixty-one (day of rest) or section
  one hundred sixty-two (meal periods) of  this  chapter,  or  a  rule  or
  regulation  promulgated  thereunder, the commissioner shall issue to the
  employer an order directing compliance therewith, which  shall  describe
  particularly  the  nature of the alleged violation. A copy of such order
  shall be provided to any employee who has  filed  a  complaint  and  any
  authorized  representative  of  him  or  her.  In  addition to directing
  payment of wages, benefits or wage supplements  found  to  be  due,  and
  liquidated damages in the amount of one hundred percent of unpaid wages,
  such  order,  if  issued to an employer who previously has been found in
  violation of those provisions, rules or regulations, or to  an  employer
  whose  violation  is  willful  or egregious, shall direct payment to the
  commissioner of an additional sum as a civil penalty in an amount not to
  exceed double the total amount of wages, benefits, or  wage  supplements
  found  to be due. In no case shall the order direct payment of an amount
  less than the total wages, benefits or wage  supplements  found  by  the
  commissioner to be due, plus the liquidated damages in the amount of one
  hundred  percent  of  unpaid  wages,  the appropriate civil penalty, and
  interest at the rate of interest then in effect, as  prescribed  by  the
  superintendent  of  financial services pursuant to section fourteen-a of
  the banking law per annum from the date of the underpayment to the  date
  of  the  payment.  Where  the  violation  is for a reason other than the
  employer's failure to pay wages, benefits or wage supplements  found  to
  be  due,  the  order shall direct payment to the commissioner of a civil
  penalty in an amount not to exceed one  thousand  dollars  for  a  first
  violation, two thousand dollars for a second violation or three thousand
  dollars  for a third or subsequent violation. In assessing the amount of
  the penalty, the commissioner shall give due consideration to  the  size
  of  the  employer's  business,  the  good faith basis of the employer to
  believe that its conduct was in compliance with the law, the gravity  of
  the  violation,  the  history of previous violations and, in the case of
  wages, benefits or supplements violations, the failure  to  comply  with
  recordkeeping or other non-wage requirements.
    Where  there  is  a violation of section one hundred ninety-eight-b of
  this chapter, the order shall direct payment back to the employee of the
  amount of wages, supplements or other thing of value unlawfully received
  plus liquidated damages in the amount of one hundred percent  of  unpaid
  wages,  and  interest  at  the  rate  of  interest  then  in  effect, as
  prescribed by the  superintendent  of  financial  services  pursuant  to
  section  fourteen-a  of  the  banking law per annum from the date of the
  payback, return, donation or contribution to the date  of  payment,  and
  shall  include  such  other  relief  as  may  be  appropriate, including
  rehiring or reinstatement of the employee to his or her former position,
  back wages, and restoration of seniority. In addition, the  commissioner
  shall  order  payment of a civil penalty of at least twenty-five hundred
  dollars but not more  than  five  thousand  dollars  per  violation.  In
  assessing  the  amount  of  the penalty, the commissioner shall give due
  consideration to the size of the employer's  business,  the  good  faith
  basis of the employer to believe that its conduct was in compliance with
  the  law,  the  gravity  of  the  violation,  the  history  of  previous
  violations.
    At the discretion of the commissioner,  the  commissioner  shall  have
  full  authority to provide for inclusion of an automatic fifteen percent

  additional amount of damages to come due and owing  upon  expiration  of
  ninety  days  from  an  order to comply becoming final. The commissioner
  shall provide written notice to the employer in the order to  comply  of
  this additional damage.
    2.  An  order  issued  under  subdivision one of this section shall be
  final and not subject to review by any court or agency unless review  is
  had pursuant to section one hundred one of this chapter.
    3.  Provided  that no proceeding for administrative or judicial review
  as provided in this chapter shall then  be  pending  and  the  time  for
  initiation  of  such proceeding shall have expired, the commissioner may
  file with the county clerk of the county where the employer  resides  or
  has  a  place of business the order of the commissioner, or the decision
  of the industrial board of appeals containing the amount found to be due
  including  the  civil  penalty,  if  any,  and  at  the   commissioner's
  discretion,  an  additional fifteen percent damages upon any outstanding
  monies owed. At the request of an employee, and at the discretion of the
  commissioner, the commissioner may assign that portion of the money  due
  that  constitutes  wages,  wage  supplements,  interest on wages or wage
  supplements, or liquidated damages due that employee, to  that  employee
  and  file  an order in that amount in the name of that employee with the
  county clerk of the county where the employer resides or has a place  of
  business. The filing of such order or decision shall have the full force
  and  effect of a judgment duly docketed in the office of such clerk. The
  order or decision may be enforced by and in the name of the commissioner
  in the same manner, and with like effect,  as  that  prescribed  by  the
  civil practice law and rules for the enforcement of a money judgment.
    4. The civil penalty provided for in this section shall be in addition
  to  and  may  be  imposed  concurrently with any other remedy or penalty
  provided for in this chapter.